Divorce and Division of the Marital Estate

In the State of California if a married person decides to divorce their spouse they have the absolute right to terminate the marriage. California is a no-fault state, meaning that besides letting the court know there are irreconcilable differences between husband and wife, the actual reasons for the break-up of the marriage have nothing to do with the ending the parties status of marriage, per se.

In most cases the “dissolution” of marriage or domestic partnership case also addresses all issues in the marriage, including custody and visitation, child support, spousal support (in other states called “alimony”), division of community property between spouses, confirmation of separate property of each spouse, etc.. This can be accomplished either by agreement between the parties or through a court trial. Divorce may also involve restraining orders if there has been domestic violence or child abuse.

An “uncontested” divorce where the parties reach full agreement on all issues is by far the easiest and quickest way for the parties to go on with their lives. In these cases the parties can submit a Marital Settlement Agreement with the proper final paperwork and will not have to ever see the inside of a courtroom.

If agreement can not be reached, the resolution of issues related to children, support or division of the marital estate (assets and debts) can be lengthy and costly.

Legal Separation

In some cases, married couples decide to completely separate their assets and debts while retaining their status of being married. Spousal support may be a part of these cases. The paperwork is virtually the same for a dissolution and a legal separation. If a couple gets a Judgment of Legal Separation and decides after that to end the status of their marriage, a new case would need to be filed and a separate Judgment dissolving the marriage needed.

Any time before a final judgment is entered in either a divorce or separation, the petitioner may amend his or her original request and change the case from one to the other. If the parties are not in agreement as to which judgment to seek, the court is available to make the appropriate orders. In California, if one party wants to end the status of their marriage they have the right to do so.

Bifurcation of Marriage

For one reason or another, some divorce cases involving minor children or division of assets and debts take months, even years, to be completely resolved. During this time, it may become apparent that there are irreconcilable differences between the parties and one or both may want to go on with their lives as unmarried persons while the other issues in the case are being litigated. One of the parties can ask the court to bifurcate the case and dissolve the status of the marriage while retaining jurisdiction over the remaining issues.

Jurisdiction and Venue Issues

The term “jurisdiction” refers to the state in which a case is filed. The term “venue” refers to the county in which a case is filed. In other words, the whole state of California may have jurisdiction over the parties to the case, but if the parties live in different counties, the case can be filed in the county where either party resides. For California to have jurisdiction, one or both parties have to have lived in the state for at least six months prior to the date of filing. For a California county to be the proper venue, one party has to have lived that county for at least four months prior to the date of filing.

An issue of whether a case is filed in the appropriate jurisdiction typically arises in the beginning of the case. The same may be true of an issue of whether the case is filed in the proper venue. But, venue can be changed long after a case has been filed and even litigated. In the past, often separate cases would be filed by the parties in different counties or states, resulting in conflicting orders regarding any issue. The worst cases where conflicting orders were made involved custody of children. To remedy this perennial problem, all 50 states passed a uniform law, based on federal legislation, setting out the rules for determining where a case is properly filed. In its current form this law is called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

Continued »

Division of Property and Debt

California is a “community property” state. This principal is that all property and debt acquired between the date of marriage and the date of separation belongs to the community. The presumption is that it should be divided equally between the spouses when they get divorced. The date of separation is not the same as the date the divorce judgment is filed. It is the date that either party decides the marriage is over, and there is no use trying to continue to make it work, because their differences are “irreconcilable.”

If the parties reach agreement on all issues through a Marital Settlement Agreement, they can divide assets and debts in any way they choose. This can be an equal distribution of assets and debts, or one that gives one spouse more than the other. If agreement is not reached, the parties can ask for a trial on the issues where a judge would be mandated to do a fair and equal division of the marital estate based on “proof” provided by the parties in their required disclosure paperwork.

Continued »

Mediation of Non-Child related Divorce Issues

The focus of divorce mediation is to solve problems and reach agreement, rather than fighting the fight, so the parties never have to go to court to have their issues aired in front of a stranger in a black robe. This type of mediation, which tries to address all issues (sometimes including child custody) is a voluntary process that gives the divorcing or separating couple the opportunity to make their own agreement for their financial and personal futures, while protecting themselves and their children from the distress and expense of litigation. The strength of a mediated agreement is that it is completed by both parties, together, in an open process that requires them to recognize and make accommodations for each other’s needs, without compromising their own.

While no two situations are alike, the emphasis of a mediated approach is to achieve a satisfactory settlement in an efficient, cooperative manner to reach an agreement both parties can live with. This might include working with a single mediation attorney, or participating in a series of “four-way” settlement conferences if both parties are represented by separate counsel, until they achieve a full settlement of their case. The philosophy behind mediating divorces is that as much effort should be put into attempting settlement as is traditionally spent in preparation for trial and conducting trial. If a single mediation attorney is retained by both parties, and the parties are unable to settle and must go to court, ethical considerations require the mediation attorney to withdraw from the case and the parties to retain new, separate attorneys. If the mediation approach is attempted using separate attorneys, yet fails to produce an agreement, the parties may still litigate using their separate attorneys. However, in both scenarios the parties are not allowed to use the content of their failed negotiations as evidence in court, because those settlement negotiations are confidential under the Evidence Code, based on the principle that knowing such negotiations are confidential makes the parties more likely to be open with each other and settle.